A Most Unwelcome Guest…The Visiting Attacker on Campus

Key Points:

A federal district court in Pennsylvania has rejected an attempt to impose liability on a college under Title IX for the murder of a freshman student by her visiting boyfriend while on campus. In Hall v. Millersville University, 2019 U.S. Dist. LEXIS 151701 (E.D. Pa. Sept. 5, 2019) the court ruled that Millersville University could not be liable for such conduct under current law.

The victim, Karlie, was a high school senior when she began dating her attacker, Gregorio. Their relationship continued past her high school graduation and through the summer. Unbeknownst to her parents, Gregorio was physically abusive, striking Karlie on occasion. In the fall, Karlie moved away from home to a college dormitory as she commenced her freshman year. She and Gregorio continued their relationship, and he began visiting her at college and would stay over as her guest in her room. The physical abuse in the relationship also continued with at least one instance where the campus police were called by Karlie’s RA to escort Gregorio off the campus following an argument he had with Karlie. While at the time she denied being physically injured by him, she missed some classes, and her roommate described her as having a black eye due to being struck. Notwithstanding the abuse, Karlie continued her relationship with Gregorio, and he continued to visit and stay with her on campus. During one of his stays the following semester, they got into a heated argument while attending a fraternity party. After they returned to her dorm room, other students in the dorm reported hearing banging noises and furniture being moved within the room. One person heard a girl screaming for help, but when one of the students knocked at the door, the noise stopped and no one answered. The following morning, Karlie was discovered in her dorm room strangled to death and with multiple traumatic injuries.

The plaintiff’s claim against the university was based on Title IX. Enacted by Congress in 1972, Title IX establishes that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). At the time of enactment, its primary purpose was to address concerns about discrimination and equal access to education for women. As time passed, however, courts interpreting Title IX concluded that the statute’s reach went beyond discrimination in educational access to include an implied private right of action against educational institutions for money damages arising out of sexual harassment and abuse, including student-on-student harassment. The U.S. Department of Education has provided additional guidance to schools in “Dear Colleague” letters, outlining how to address and respond to sexual discrimination and harassment through school policies, investigative procedures and prevention programs, which the courts look to when addressing these claims.

Generally speaking, in order to prevail in a Title IX claim for student-on-student sexual assault, a plaintiff must show:

(1) the defendant institution received federal funds;

(2) sexual harassment and/or an assault occurred;

(3) the harassment occurred under circumstances wherein the defendant exercised substantial control over both the harasser and the context in which the harassment occurred;

(4) the defendant had “actual knowledge” of the harassment;

(5) the defendant was “deliberately indifferent” to the harassment; and

(6) the harassment was so severe, pervasive, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school.

The basis for this type of liability is not vicarious; the U.S. Supreme Court has clarified that a recipient of federal funds may be liable in damages under Title IX only for its own misconduct—not the misconduct of the harasser. The recipient’s wrongful conduct itself must deny persons from participation in . . . the benefits of, . . . or subject the victim to discrimination under “its programs or activities” in order to be liable under Title IX.

A threshold issue in these cases is the status of the victim. While Title IX certainly applies to all enrolled students, courts have generally rejected claims brought by visiting guests, determining that in order to have standing under Title IX, a victim must actually be a student of the defendant institution. The court in the Millersville case was not confronted with that issue because Karlie was an enrolled student in the university. Instead, it was the status of her attacker that became the focus of the court’s decision.

While recognizing that Title IX liability can arise out of harassment at the hands of both teachers and other students, in the court’s view, the deliberate indifference standard requires that the defendant institution have some control over the harassment, as well as the authority to take remedial action. There must be “substantial” control over both the harasser and the context in which the “harassment” occurs, which the court determined was lacking in the case before it.

The plaintiffs argued that the Office of Civil Rights has issued guidance, finding that third-party conduct can expose a school to liability under Title IX:

Sexually harassing conduct of third parties, who are not themselves employees or students at the school (e.g., a visiting speaker or members of a vising athletic club) can also create a sexually hostile environment in school programs or activities. For the same reason that a school will be liable under Title IX for a hostile environment caused by its students, a school will be liable if third parties sexually harass its students if (i) a hostile environment exists in the school’s programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action.

In rejecting the plaintiff’s reasoning, the court found that holding a college liable for an attack by a student’s guest is simply not analogous to a college-hosted speaker or visiting sports team. The circumstances under which Karlie was attacked were unconnected to the school or its educational activities, other than the decedent’s status as a student. The fact that the school had no role in bringing the attacker on campus played prominently in the court’s decision to refuse to extend Title IX’s reach to cover this situation.

I doubt this decision will be the last word on the subject. In its decision, the court warned the defendant that, if the Third Circuit or Supreme Court were to extend the scope of Title IX liability to harassment at the hands of the victim student’s own guest, the facts of the case would have required a different result, and it would have been for the jury to determine whether Millersville was deliberately indifferent to the abuse inflicted on Karlie when it was on notice of the harasser’s past conduct directed at her and had control over the dormitory hall and room. Until the Supreme Court takes up this issue itself, it will remain up to the individual district courts to determine the reach of Title IX liability.

*Paul, a shareholder, works in our Allentown, Pennsylvania office. He can be reached at 484.895.2321 or pglees@mdwcg.com.

_{Defense Digest, Vol. 25, No. 4, December 2019 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}